No. 99-60902
-1-
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-60902
Summary Calendar
LARRY ROCHELL SMITH,
Plaintiff-Appellant,
versus
DON GRANT, Warden of Delta Correctional Facility; OHAMZAH BRIMAH,
DR, Doctor and Psychiatrist at Delta Correctional Facility,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 4:99-CV-272-D-D
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May 4, 2000
Before KING, Chief Judge, and POLITZ and DENNIS, Circuit Judges.
PER CURIAM:*
Larry Rochell Smith, Mississippi prisoner # 89754, appeals
the district court’s denial of IFP and closure of his case for
failure to provide evidence of exhaustion of administrative
remedies. Smith’s motion to supplement and annex a page in his
brief is GRANTED.
Smith alleged in his complaint that he is a diagnosed
schizophrenic; that Delta Correctional Facility (DCF) is not a
medically adequate or proper facility in which to incarcerate
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 99-60902
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him; and that his complaints that the living conditions at DCF
and his work requirements are aggravating his mental condition
and causing him pain and suffering are being ignored. Smith
alleged that he had complied, or had made a good faith effort to
comply, with the grievance procedures in place at DCF and that he
had been frustrated in his attempts. He attached copies of his
grievances and the responses thereto, including a response which
stated that the Administrative Remedy Procedure at DCF only
applied to complaints concerning “Time and Classification.” The
district court entered an order denying Smith IFP status. The
district court stated that “until evidence of exhaustion of the
Administrative Remedy Program is provided plaintiff may not
proceed with this case,” and ordered the case closed.
Smith argues on appeal that the district court erred in
dismissing his case for failure to exhaust. He asserts that he
has provided evidence of exhaustion in the form of copies of his
grievances. He seeks to have his complaint reinstated and his
case remanded to the district court for further proceedings.
Section 1997e(a), as amended in 1996, provides:
No action shall be brought with respect to
prison conditions under section 1983 of this
title, or any other Federal law, by a
prisoner confined in any jail, prison, or
other correctional facility until such
administrative remedies as are available are
exhausted.
“Dismissal under § 1997(e) is made on pleadings without proof.
As long as the plaintiff has alleged exhaustion with sufficient
specificity, lack of admissible evidence in the record does not
No. 99-60902
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form the basis of dismissal.” Underwood v. Wilson, 151 F.3d 292,
296 (5th Cir. 1998), cert. denied, 119 S. Ct. 1809 (1999).
Smith alleged that he had exhausted his administrative
remedies. Further, he provided copies of grievances and
responses, including a response which indicates that
administrative remedies are not “available” for the claims which
he seeks to assert in this complaint because they do not concern
Time or Classification.
The district court erred in denying IFP and closing this
case for failure to exhaust. Underwood, 151 F.3d at 296. The
district court’s order is VACATED and this case is REMANDED for
further proceedings.
VACATED AND REMANDED.